The Iowa Supreme Court took an unfortunate significant step backwards as it relates to the rights of individuals arrested, but not yet formally charged with Operating While Intoxicated, in Iowa. In State v. Sewell, a case argued by GRL Law, Justice Mansfield, delivered the opinion of the court which held a person arrested for Operating While Intoxicated, who has been asked to submit to a breath test, but has not yet been formally charged with the offense, does NOT have the right to a privileged phone call with an attorney. Justice Appel issued a stern dissent, arguing that the request for a breath specimen following an OWI arrest was a critical stage in the case and consequently, a person faced with that decision should have the constitutional right to a confidential telephone consultation with an
The Iowa Supreme Court took an unfortunate significant step backwards as it relates to the rights of individuals arrested, but not yet formally charged with Operating While Intoxicated, in Iowa. In State v. Sewell, a case argued by GRL Law, Justice Mansfield, delivered the opinion of the court which held a person arrested for Operating While Intoxicated, who has been asked to submit to a breath test, but has not yet been formally charged with the offense, does NOT have the right to a privileged phone call with an attorney. Justice Appel issued a stern dissent, arguing that the request for a breath specimen following an OWI arrest was a critical stage in the case and consequently, a person faced with that decision should have the constitutional right to a confidential telephone consultation with an attorney. The law following this decision, however, is that arrestees in Iowa do not have the right to a confidential phone call with an attorney prior to making a decision regarding a breath test.
The practical implication of the court’s decision is that law enforcement is permitted to listen to and monitor any phone call that an arrestee makes when attempting to make a decision regarding breath testing at the station. Anything that person says in the presence of the officer can and will be used against him or her in a subsequent prosecution. As GRL told the Associated Press, the unfortunate consequence of this decision is “it opens the door for a complete disregard for the attorney-client privilege that is supposed to form the basis of our judicial system.” “What boggles my mind is convicted murderers who are in prison have the right to confidential consultations with their attorneys over the phone but we’re not doing that for people who are just arrested.” Notably, the Iowa Supreme Court’s decision failed to even mention the attorney-client privilege let alone, discuss how it is impacted by law enforcement forcing individuals to communicate with their attorney in a way that discloses the contents of their conversation.
The majority specifically refused to decide the issue also raised in Sewell which was whether it was also improper for law enforcement to record the conversation with the attorney in a way that also discloses the attorney’s side of the conversation. That issue will have to be raised again in the appropriate case. The Sewell decision is an unfortunate setback to the rights of individuals under investigation for crimes in Iowa. GRL Law has already begun working to develop and sharpen alternative arguments and advocate for legislative changes to better protect the rights of Iowans. We certainly took one on the chin with this decision, but we have a saying here at GRL Law: “It is never failure as long as you get back up and keep fighting.” We are committed to doing just that.
