Supreme Court case determines a DWI suspect is entitled to a private consultation with his attorney under Missouri’s implied consent law, assuming the suspect requests a chance to call his lawyer.

Hearing this issued for the first time, the state high court reviewed Jereme Roesing v. Director of Revenue, an appeal from Jackson County circuit court. By a decision of 4-3, the Court reversed the decision and remanded the case (sends it back) to the trial court. The Court ruled that because law enforcement deprived the man of his right to confer privately with his attorney, and the Director of Revenue failed to show the man was not prejudiced as a result, his refusal to consent to the chemical test was not voluntary and unequivocal, and the circuit court erred in sustaining the revocation of his driving privileges.

The facts of the case are as follows:

The Defendant was arrested for driving while intoxicated, transported to the police department, and read Missouri’s implied consent law. Before deciding whether to consent to a chemical breath test, Defendant asked to speak with his attorney, and the officer allowed him to attempt to contact an attorney.

During the call, the attorney asked to speak with the officer, requesting to speak with the Defendant in private. The officer refused to give Defendant privacy, advised the attorney the conversation would be recorded and stood near the Defendant for the remainder of his conversation with his attorney.

Defendant ultimately refused to submit to the chemical breath test, and the Director of Revenue revoked his driving privileges for one year pursuant to section 577.041, RSMo.  Defendant sought review in the circuit court, which entered judgment sustaining the revocation after an evidentiary hearing. Defendant then appealed.

The Supreme Court held: Because law enforcement deprived Defendant of his right to confer privately with his attorney, and the Director failed to show Defendant was not prejudiced, his refusal to consent to the chemical test was not voluntary and unequivocal, and the circuit court erred in sustaining the revocation of his driving privileges.

Section 577.041.1 provides a driver who wishes to speak with an attorney the right, upon request, to 20 minutes in which to attempt to contact the attorney. The statute’s purpose is to give the driver a reasonable opportunity to contact an attorney to make an informed decision whether to submit to a chemical test. A driver who successfully contacts an attorney is afforded a reasonable opportunity to make an informed decision only if the driver is able to disclose candidly all necessary information to receive appropriate advice from the attorney. For a driver to have meaningful contact with an attorney, the conversation must be private, especially when read in harmony with section 600.048.3, RSMo, an older statute requiring law enforcement to have a private room available for a person held under a charge to talk privately with the person’s lawyer. The legislature’s decision not to eliminate the right to privacy in section 577.041 further indicates it is inherent in that statute. By listening to and recording Defendant’s end of the conversation, law enforcement obstructed his opportunity to speak privately with his attorney, making his refusal of the chemical test involuntary and equivocal.

The director failed to show Defendant was not prejudiced as a result. Despite the attorney specifically requesting privacy, an officer listened to and recorded Defendant’s end of the conversation, then distributed the recordings to the prosecutor’s office for use in Defendant’s criminal case.

The argument against the decision was spelled out in Judge W. Brent Powell dissent. He would affirm the circuit court’s judgment sustaining the revocation of the man’s driving privileges because the man received the benefit of the only right the statute confers – 20 minutes in which to contact an attorney. The statute’s plain language, he argues, confers no right to private consultation with an attorney privately before deciding whether to refuse a chemical breath test.

2

REVERSED AND REMANDED.

Court en banc holds: Because law enforcement deprived Roesing of his right to confer privately with his attorney, and the director failed to show Roesing was not prejudiced, his refusal to consent to the chemical test was not voluntary and unequivocal, and the circuit court erred in sustaining the revocation of his driving privileges. Section 577.041.1 provides a driver who wishes to speak with an attorney the right, upon request, to 20 minutes in which to attempt to contact the attorney. The statute’s purpose is to give the driver a reasonable opportunity to contact an attorney to make an informed decision whether to submit to a chemical test. A driver who successfully contacts an attorney is afforded a reasonable opportunity to make an informed decision only if the driver is able to disclose candidly all necessary information to receive appropriate advice from the attorney. For a driver to have meaningful contact with an attorney, the conversation must be private, especially when read in harmony with section 600.048.3, RSMo, an older statute requiring law enforcement to have a private room available for a person held under a charge to talk privately with the person’s lawyer. The legislature’s decision not to eliminate the right to privacy in section 577.041 further indicates it is inherent in that statute. By listening to and recording Roesing’s end of the conversation, law enforcement obstructed his opportunity to speak privately with his attorney, making his refusal of the chemical test involuntary and equivocal. The director failed to show Roesing was not prejudiced as a result. Despite the attorney specifically requesting privacy, an officer listened to and recorded Roesing’s end of the conversation, then distributed the recordings to the prosecutor’s office for use in Roesing’s criminal case.

Appeal from the Jackson County circuit court, Judge Robert L. Trout

Argued and submitted January 15, 2019; opinion issued April 30, 2019

Attorneys: Roesing was represented by William C. Kenney of the Bill Kenney Law Firm LLC in Kansas City, (816) 842-2455. The director was represented by Deputy Solicitor General Zachary M. Bluestone of the attorney general’s office in Jefferson City, (573) 751-3321, and Morgan Brewington of the department of revenue in Jefferson City, (573) 332-1605.

Two organizations filed briefs as friends of the Court. The American Civil Liberties Union of Missouri was represented by Anthony E. Rothert and Jessie Steffan of the ACLU of Missouri Foundation in St. Louis, (314) 652-3114, and Gillian R. Wilcox of the ACLU of Missouri Foundation in Kansas City, (816) 470-9938. The Missouri Association of Criminal Defense Lawyers was represented by Denise L. Childress of Ward & Childress Trial Lawyers in Washington, Missouri, (314) 394-2150.

This summary is not part of the opinion of the Court. It has been prepared by communications counsel for the convenience of the reader. It neither has been reviewed nor approved by the Supreme Court and should not be quoted or cited.

Overview: A man appeals the revocation of his driving privileges, raising the issue of first impression whether he was entitled to a private consultation with his attorney under Missouri’s implied consent law. In a 4-3 decision written by Judge Mary R. Russell, the Supreme Court of Missouri reverses the judgment and remands (sends back) the case. Because law enforcement deprived the man of his right to confer privately with his attorney, and the director of revenue failed to show the man was not prejudiced as a result, his refusal to consent to the chemical test was not voluntary and unequivocal, and the circuit court erred in sustaining the revocation of his driving privileges.