On Tuesday, the Missouri Supreme Court reversed Jerome Roesing’s one year license revocation for refusal to consent to a chemical breath test. The Supreme Court held that law enforcement deprived Roesing of his right to counsel when it listened to and made audio/video recordings of the end of his conversation with his attorney.
Right to Attempt Contact with an Attorney
Missouri law guarantees the right to attempt to contact an attorney for only twenty minutes. RSMo. 577.041.1. The purpose of the law is to provide the driver with a reasonable opportunity to contact an attorney to make an informed decision about whether to submit to a chemical test.
Any refusal must be “voluntary and unequivocal.” When a driver conditions his refusal on consulting with an attorney, but is not given a reasonable opportunity to do so, then the driver is not deemed to have refused to submit.
In Jerome Roesing’s case, he requested to call an attorney and was successful in reaching one. After speaking to the attorney for one minute, Roesing handed the phone to the officer and the attorney told the officer he wished to speak to Roesing in private.
The officer refused to give the attorney and client any privacy by standing three feet away and audio/video recording the conversation, which were ultimately turned over to the prosecuting attorney for use in the criminal charge.
At the end of the conversation, Roesing refused to submit to a chemical test. After that, the Department of Revenue revoked Roesing’s driving privileges for one year for refusing to submit to the chemical analysis.
Missouri Supreme Court Clarifies Right to Contact Attorney Includes Privacy
In support of Roesing, two organizations filed briefs as friends of the Court: the American Civil Liberties Union of Missouri and the Missouri Association of Criminal Defense Lawyers, which Mr. Woody leads as President of the organization.
On Tuesday, the Missouri Supreme Court clarified that the driver is only afforded an opportunity to contact an attorney and make an informed decision if the driver is able to candidly disclose all necessary information to receive appropriate advice from the attorney.
A driver is not free to speak candidly with his attorney regarding potentially incriminating evidence when there is a possibility that anything can be shared with the prosecuting attorney who will decide whether to file criminal charges.
The Court held that “to have meaningful contact with an attorney, the conversation must be private” and “privacy is inherent in a driver’s  right to counsel.”
It will be interesting to see how the Roesing case affects refusal cases in Southwest Missouri. If you or someone you love is asked to submit to a chemical test, always request to contact an attorney and speak to the attorney privately.