When does a person arrested for DWI have an absolute right to the assistance of an attorney?

Under our Federal and State Constitutions, persons have an absolute right to the assistance of an attorney at their criminal trial. However, such is not the case in every pretrial stage which precedes the trial. Indeed, in some pretrial stages, a person in custody has a right to assistance of an attorney for one purpose but not for another purpose, i.e., for assistance in answering police interrogation questions but not for deciding whether or not to take a breath or blood test.

Generally speaking, any person who is in custody of a police officer wherein it would objectively be viewed he is under arrest, even if the person has not been told so, is entitled to be informed of his rights to remain silent, to have assistance of a lawyer prior to and during any interrogation, to have a free attorney if he is financially unable to hire one, and, to terminate any such interrogation. However, deliberate or negligent violations of these rights by police do not mean the person's criminal prosecution will be dismissed. Rather, the remedy for such violations is merely to declare the use of the person's incriminating statements illegal and to preclude them from being used against him by preventing their admission into the prosecution's evidence.

In regard to the above exclusionary rule, two things need to be remembered. First, police do not have to inform arrested persons of their rights if no interrogation questions will be asked. Second, if police do intend to ask interrogation questions and intend to use the person's answers as evidence of guilt, they need to not only make sure the arrested person understands the rights, but also, they need to prove the person knowingly and intentionally gave the rights up.