People v. Whipple

PRESIDING JUSTICE HOLDRIDGE,

dissenting:

I respectfully dissent. I agree with the majority’s analysis that there is no absolute constitutional or statutory right to consult an attorney prior to submitting to a breathalyzer test. However, individuals being detained by the police, "including those required to submit to a breathalyzer, have a statutory right to consult with an attorney within a reasonable time after arrival at the first place of custody. I believe that, under the facts and circumstances of this case, this defendant’s statutory right to counsel was violated, and I would affirm the trial court on that basis.

Section 103—3(a) of the Code of Criminal Procedure of 1963 provides:

“Persons who are arrested shall have the right to communicate with an attorney of their choice *** by making a reasonable number of telephone calls or in any other reasonable manner. Such communication shall be permitted within a reasonable time after arrival at the first place of custody.” (Emphasis added.) 725 ILCS 5/103—3(a) (West 1996).

Further, our legislature has provided:

“Any person committed, imprisoned or restrained of his liberty for any cause whatever and whether or not such person is charged with an offense shall, except in cases of imminent danger of escape, be allowed to consult with any licensed attorney at law of this State whom such person may desire to see or consult, alone and in private at the place of custody, as many times and for such period each time as is reasonable.” 725 ILCS 5/103—4 (West 1996).

Here, the defendant was taken into custody and transported to the Rock Island county jail. The defendant immediately identified his attorney and requested an opportunity to consult with the attorney by phone. His request was refused. For the next 20 minutes, the defendant repeatedly asked to be allowed to speak to his attorney, but each request was refused. It is important to note that no attempt was made to administer the breathalyzer test during this 20 minutes. Rather, the defendant simply sat within easy reach of a telephone while the deputy waited for 20 minutes to pass. In fact, the record establishes that the refusal of the defendant’s request served no purpose other than compliance with a departmental policy. Thus, it is clear from the record that granting the defendant’s request to speak with his attorney at anytime during the 20-minute delay prior to administering the breathalyzer test would not have impaired the State’s ability to administer the test.

Under the circumstances of this case, where granting the defendant’s request to speak to an attorney would not have delayed the testing procedure, it was unreasonable for the deputy to deny the defendant access to his attorney. This unreasonable delay violated the statutory requirement that the defendant be allowed to contact his attorney within a reasonable time after being restrained of his liberty and the trial court was correct in so finding.

Further, to the extent that the purpose of the departmental policy of denying the defendant access to his attorney while the clock ticks down the magic 20 minutes was to prevent the defendant from seeking advice of counsel, I am reminded of our supreme court’s admonition:

“ ‘No system worth preserving should have to fear that if an accused is permitted to consult with a lawyer, he will become aware of, and exercise, [his] rights.’ (Emphasis omitted.) [Citation.] If our system is, indeed, such a system, we have no reason to fear both lawful and protected consultation.” People v. McCauley, 163 Ill. 2d 414, 446 (1994), quoted in People v. Milestone, 283 Ill. App. 3d 682, 687 (1996).

For the foregoing reasons, I would have affirmed the decision of the trial court, and I dissent on that basis.