Now, hold on just a second . . .

State v. Aiken, 2015 VT 99

By Andrew Delaney

Mr. Aiken was pulled over for speeding just before midnight. “The police sergeant observed that defendant’s eyes were bloodshot and watery, and he detected a faint odor of alcohol coming from inside defendant’s vehicle.” I like to imagine there’s a parrot at a police station somewhere going, “Brawk . . . bloodshot and watery . . . brawk . . . odor of alcohol.”

Anyway, Mr. Aiken admitted he’d consumed alcohol before driving. Preliminary breath and field sobriety tests indicated Mr. Aiken was on the tipsy side of legal, so he got a ride to the police barracks that he probably didn’t really want, but had to go on anyway. Mr. Aiken was told of his statutory right to counsel before taking the evidentiary breath test, which he thought sounded like a good idea. The sergeant called the on-call public defender, but didn’t get through. The sergeant was able to get the backup public defender on the line, handed the phone to Mr. Aiken, left the room, and turned off the audio on the recording.

Mr. Aiken tells it like this: he and the backup public defender exchanged pleasantries, after which the lawyer said “hold on” and placed Mr. Aiken on hold. Mr. Aiken then waited about ten minutes before he called the sergeant for help. The video feed seems to show Mr. Aiken not talking for about ten minutes.

The sergeant tried the on-call and backup public defenders again, with no answer at the former’s numbers, and a busy signal at the latter’s number. The sergeant told Mr. Aiken that he was running out of time to decide whether to take the test—because the statute says you’ve got thirty minutes from the attempt to contact, whether or not a consultation takes place—and waited until the time was up. When the sergeant asked Mr. Aiken whether he’d take the test, Mr. Aiken wouldn’t answer and the sergeant took this as a refusal.

Mr. Aiken was charged with DUI. He moved to suppress his refusal on grounds that he was completely denied his right to counsel. The trial court basically said, “Nope, once contact was made, the State’s obligation was met.” Mr. Aiken moved to reconsider, and the trial court declined the invitation.

So Mr. Aiken appeals. He argues that there’s a statutory obligation for the defender general to provide 24-hour DUI consultations, and that the whole no-advice-other-than-“hold on” thing violates that obligation. The State runs with the hey-once-contact-is-made-our-job-is-done line. The SCOV says you’re both wrong and goes with an attorney-client-relationship-forms-when-a-defendant-speaks-with-the-public-defender-and-that-can’t-form-the-basis-to-determine-a-right-to-consultation line o’ reasoning. Wait. What?

Generally, the SCOV does the two-step—defer on facts but not on law—analysis of a motion to suppress, but in this case there was no hearing; the trial court treated Mr. Aiken’s allegations as true. The SCOV decides it’ll do the same.

There’s a statute. You can read it if you like. The statute puts two obligations on the State. First, the law-enforcement officer has to let the detainee know about his right to counsel and has to make a reasonable effort to contact a public defender during processing. Second, the defender general has to provide twenty-four-hour access to counsel.

The SCOV makes a distinction between access and content—noting that generally it’s found violations on the access point, but not on the content.

For example, a failure to adequately inform a detainee of his right to counsel is a violation; so is a failure to attempt to call public defenders; and so is a failure to give a detainee adequate privacy; or when a public defender can't be reached on the phone. It’s also a violation if the public defender won’t talk to the detainee because the officer won’t run a record check.

On the other hand, a public defender’s refusal to advise a detainee based on the detainee’s representations of his prior DUI convictions isn’t a violation—the SCOV reasons that still gives a detainee that “meaningful opportunity” to consult with counsel that’s required. Nor is crappy advice a violation—it’s still a “meaningful opportunity” as required by the statute.

The SCOV first reasons that there was no access violation. The sergeant made the calls, gave Mr. Aiken an opportunity to speak privately with the available attorney, and waited the full thirty minutes for a possible call-back.

The SCOV then does a kind of content-versus-access analysis based on two cases (Velez and Ironside if you’re curious). The SCOV notes that in the case in which it found a violation, the public defender was under orders from the defender general not to speak with detainees under the circumstances. That wasn’t going on here.

The SCOV also reasons that there was no consultation in the case where it found a violation, but there was some sort of consultation in the case where it didn’t find a violation—putting this case into the latter camp.

The SCOV then talks about the sanctity of the attorney-client relationship. It’s important to have that confidentiality thingy because it encourages full and open disclosure. The SCOV notes its concern that “peering behind the veil” to determine the quality of representation would open the door to eroding the privacy allowed detainees—that a detainee may make very damaging admissions and then would be placed in a problematic position in trying to get a determination of the adequacy of the consultation. In other words, while Mr. Aiken waived privilege, the SCOV thinks that could’ve been a lousy plan. The SCOV also notes the problems associated with the State trying to get information from an attorney who doesn’t want to disclose confidential information.

The SCOV doesn’t buy Mr. Aiken’s there’s-other-circumstantial-evidence-that-shows-I-didn’t-get-a-good-consult argument (the video and his silence). The SCOV isn’t willing to make the defender general guarantor of the attorney’s advice, and so, the denial of the motion to suppress is affirmed.

I don’t know about this one. It seems to me that the attorney-client privilege belongs to the client. If an attorney says “hold on” and puts you on hold for ten minutes is that really a “meaningful opportunity” to consult with counsel? I know if I billed ten minutes on hold as a “meaningful opportunity to consult with counsel,” most of my clients would have a conniption fit. I’ll concede that the way the statute reads, there really might not be a violation here, but is the privilege-is-sacrosanct analysis the right move? You tell me.