Right to Private Consultation with Attorney

"Those holding custody of arrested persons should honor attorney requests for a private, barrier-free meeting room. Upon request, video and audio recordings should be turned off during the attorney consultation or the attorney should be allowed to temporarily block the camera. In any event, audio and video recording of the in-person attorney consultation shall not be admissible against the accused." Those are the words of Justice Waterman of the Iowa Supreme Court in their recent decision of State v. Walker.

Iowa law has long provided an arrested person the right to call, consult, or see a family member, an attorney, or both, upon arrival at the place of detention following their arrest. In the context of an arrest for operating while intoxicated, if a person requests such a consultation, the arresting officer must give them a "reasonable opportunity" to have such a consultation prior to making their decision regarding chemical testing. See "Your Rights." The question that arose recently, is what level of contact may an attorney have with an arrested person if they come down to the police station to have a personal consultation with the individual. In Walker, the attorney was forced to meet with his client over the phone with a glass partition separating them. The Iowa Supreme Court's answered the question by concluding that an attorney must be given face to face contact so long as there is no specific basis to believe there would be a safety concern. In other words, if the arrested person is behaving himself/herself, the attorney is allowed to meet with them face to face.

Face to face consultation with an attorney is an important right available to a person arrested for operating while intoxicated. Law enforcement has already subjected the individual to "standardized field sobriety tests" and has formed their own conclusion that the person is intoxicated. A competent and qualified attorney must be able to make their own independent evaluation of an individuals level of sobriety in order to provide proper legal advice. This is especially true since Iowa Court of Appeals cases have concluded that law enforcement is not required to share the results of their preliminary testing with the arrested individual. Thus, it is only fair that if an attorney asks, he must be given a "barrier-free" private meeting room to independently assess their client.

The next question that arises is what about video recording the consultation. Law enforcement has an interest in ensuring the safety of the attorney and is also required to keep the arrested person under observation for fifteen minutes prior to administering the breath sample. However, these interests must be balanced with the arrested individuals right to have a private and confidential consultation with his attorney where the attorney may wish to conduct an independent assessment of the persons intoxication prior to providing advice regarding chemical testing. Recognizing this as an important right, the Iowa Supreme Court also concluded that law enforcement may not video or audio record the private consultation. The recording devices must either be turned off or the attorney must be allowed to temporarily block the camera. Even if the consultation is somehow recorded, it cannot be used against the accused.

In conclusion, the Iowa Supreme Court continued in its long standing position in protecting arrested individuals statutory right pursuant to Iowa Code section 804.20 to consult with an attorney before making a decision regarding chemical testing. It is important to note however, that the private and confidential communication provision of section 804.20 does NOT apply to anyone but attorneys. Thus, it is imperative that non-attorneys consulting with an arrested person understand that everything they say or do is likely being recorded and may be admissible against the individual. This brings us back to the three keys to surviving an arrest for OWI: Shut up; Wise up; Lawyer up.