What about cases like Hargrove v. State, 162 S.W.3d 313 or State v. Hernandez, 842 S.W.2d 306 where the request for court appointed counsel was sufficient to invoke the Sixth Amendment right to counsel?

And I totally agree that more efforts must be taken to get the investigation out of the way prior to magistration to make sure the Sixth Amendment doesn't apply. Definitely sage advice.

Rothgary certainly raises some interesting questions.

quote:

---

One of the 15.17 forms I've seen recently has a box to check for "I want a lawyer" and another box to check for "I'll talk to the police now." Is that a valid solution?

---

How about this:

Will you talk with investigators?
[] Yes, without my lawyer.
[] Yes, but only with my lawyer.
[] No.  Put me in jail.
[] I confess!  I confess!

quote:

---

Originally posted by AlexLayman:
No wonder... we strive to live in a nation of laws but even the attorneys don't agree on the meaning of those laws?

---

The interplay of the 5th and 6th amendment rights to counsel is among the most difficult areas of constitutional law. Read the Rothgery transcript and see how everyone was having trouble. The opinion was disingenuous to suggest that it was not so difficult.

Part of the problem, too, is the difficult interplay between our society's need to protect itself by arresting dangerous criminals and our society's need to protect the rights of its citizens. I wonder if other nations allow the right to counsel to hinder investigation the same way we do. See this thread: Link

quote:

---

Intoxilyzer is not in play because of Rothgery or the 6th. Article 15.17 requires an arrested person be magistrated without unnecessary delay. Collection of dissipating evidence is a necessary reason for delay.

---

More necessary to continue the investigation after arrest than to present him to the magistrate for a hearing that the US Supreme Court just told us is a matter of constitutional significance? Maybe. Maybe not. How long could it really take to magistrate them? It could probably be done in the 15 minute observation time before the test. Most of the DWI arrests will be without warrant so they get to 15.17 via 14.06 where it says the magistrate shall immediately give the 15.17 warnings. Both the legislature and the US Supreme court say this hearing is really important and the SCOTUS says we've been doing it wrong in Texas.

quote:

---

Originally posted by R.J. MacReady:
What about cases like Hargrove v. State, 162 S.W.3d 313 or State v. Hernandez, 842 S.W.2d 306 where the request for court appointed counsel was sufficient to invoke the Sixth Amendment right to counsel?

---

Undoubtedly, the 6th amendment right had attached in this case, but the Supreme Court says a defendant may waive that right where he doesn't have a lawyer. Hargrove mishandles Patterson and Hernandez doesn't address Patterson in any meaningful way. And we can't forget that, in matters of the scope of 6th Amendment, the Supremes trump the Texas courts of appeals.

Alex, Article 15.17 is constitutionally significant, but can you find any Texas or federal court that has said that a defendant is constitutionally required to be magistrated before the police have a chance to collect evidence? Rothgery was about a limited, albeit significant issue in the criminal justice timeline. The Supremes said nothing to the effect "and you have to bring this fellow straight to the judge, no side trips."

I get that. The Supremes said it was constitutionally significant and the state legislature says it must be done without unnecessary delay and that the magistrate shall immediately inform the accused of what are basically the Miranda rights.

What is reasonable or unreasonable delay might depend on if there is even a magistrate available. In jurisdictions with 24 hour magistrates it might be a process of weighing what the State risks losing because of the delay.

In the case of Intoxilyzer in a jurisdiction with a 24 hour magistrate the State risks losing some time between the arrest and the measurement... But how much time really? If the magistrate only reads the 15.17 warnings and doenst do probable cause or bail or anything else... it would take like 45 seconds.

The 15.17 hearing shouldn't delay the test but by maybe a couple of minutes at most since it could be done concurrent with the required 15 minute pre-test observation period. So maybe those few minutes cost some degree of accuracy but according to the recent July 4 results posted in another thread, most of the drunks are waaaay over .08 anyway so this wont be enough time for them to sober up.

quote:

---

Originally posted by JohnR:
And we can't forget that, in matters of the scope of 6th Amendment, the Supremes trump the Texas courts of appeals.

---

True that.

The magistrate doesn't even have to be in the same physical location as the defendant. Here is an excerpt from 15.17

The arrested person may be taken before the magistrate 
in person or the image of the arrested person may be 
presented to the magistrate by means of an electronic 
broadcast system. The magistrate shall inform in clear 
language the person arrested, either in person or through 
the electronic broadcast system, of the accusation 
against him and of [... Miranda ...]

Another angle on the reasonableness of the delay is what does the accused risk losing because of a delay? Pre-Rothgery it wasn't much since Texas courts didn't put much weight in the 15.17 hearing anyway. There was an amicus joined by the State of Texas that really minimized the importance of the 15.17 hearing.

Now that the SCOTUS says 15.17 is much more important, the old reasonableness analysis is out the window because it was based on the established view that the hearing wasn't all that important anyway. I read the oral argument and I did try a little bit to find a good case on unreasonablen delay but what I found was grounded in the same caselaw that Gillespie County used in the failed argument against Rothgery. Also some stuff that looked like it was going to be on point ended up really being more about 5th amendment self-incrimination arguments and didn't address the 6th.

Anyway this could be serious even without the "testimonial" or "right to counsel" issues because the 15.17 also includes the warning that the accused can terminate any police interview at any time. This is just as much reason as any not to give the warning because if you remind the drunk of this right then they might not blow, even without talking to an attorney... and if they did the attorney would 99% tell them not to blow.

Now on the other hand, if the drunk was given a Miranda before the breath test they should already know everything they would have learned in the 15.17 hearing, right? From what I've read on this board, some of y'all advise against giving the Miranda before doing the test and maybe Rothgery changes the math on that calculation, especially if you don't have a 24 hour magistrate.

Anyway, this could get messy so thats why I was saying a portable intoxilyzer would be good because the police could do the test before arresting the drunk.

Stop trying to sell portable intoxilyzers. I'm just gonna have to disagree with you on this one, Alex.

As I read Patterson, the defendant never invoked his 6th Amendment right. Accordingly, there was only a question of whether he waived his right. Patterson v. Illinois, 487 U.S. 285, 289, 108 S.Ct. 2389, 2393 (1988) ("On appeal, petitioner argued that he had not 'knowingly and intelligently' waived his Sixth Amendment right to counsel before he gave his uncounseled postindictment confessions.").

The idea that invocations of the 6th Amendment right to counsel don't count until counsel has formally appeared seems untenable. The facts involving one of the appellants (Bladel) in Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404 (1986) show that this argument doesn't work:

Bladel, a disgruntled former employee, was arrested on January 1, 1979, and, after being questioned on two occasions, was released on January 3. He was arrested again on March 22, 1979, and agreed to talk to the police that evening without counsel. On the following morning, Friday, March 23, 1979, Bladel was arraigned. He requested that counsel be appointed for him because he was indigent. The detective in charge of the Bladel investigation was present at the arraignment. A notice of appointment was promptly mailed to a law firm, but the law firm did not receive it until Tuesday, March 27. In the interim, on March 26, 1979, two police officers interviewed Bladel in the county jail and obtained a confession from him.

Id. at 627.

Bladel won because: "We thus hold that, if police initiate interrogation after a defendant's assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid.
." Id. at 636 (emphasis added).

Oh good, I'm not crazy.

Okay, first thought is that Westlaw sucks today. Cannot get it to work.

Second thought is that I agree because a lawyer was promptly appointed in Jackson. Once the lawyer is appointed, the subsequent waiver is not valid because you have to go through counsel. But how can the police go through counsel if none has been appointed? You're setting up a rule that can't be complied with in timely fashion. Had the police checked in Jackson, they would have found out about the attorney and done something different.

Is there a distinction between attaching and invoking?

All this really points to the critical need to investigate your defendant before arresting him. If Patterson applies, you have little chance to talk to a defendant in this situation. If Jackson, then zero. Answer: arrest only after exhausting other investigative means.

You're crazy.

quote:

---

Is there a distinction between attaching and invoking?

---

I thought this distinction was in Patterson?

This aint WestLaw but it will work: http://supreme.justia.com/us/487/285/

quote:

---

Originally posted by JohnR:

You're crazy.

---

Punk.

[This message was edited by R.J. MacReady on 07-30-08 at .]

quote:

---

Answer: arrest only after exhausting other investigative means.

---

Now this is hair I was trying to split regarding the Intoxilyzer, the 15.17 hearing, and Rothgery. Even if the test isn't testimonial it is definately investigative and probably a delay in counties with 24 hour magistrate.

I think Rothgery changes the factors in determining rather the delay is reasonable. I'm not saying it changes the outcome of the determination, just that the old determination could be reconsidered since the Texas cases it is based on were used by Gillespie County and deemed unconvincing in the Rothgery holding.

The best I could do was one from the 14th COA in Houston in the 90s that said the Intoxilyzer was an administrative step. When I think of administrative steps I'm thinking of paperwork and maybe even photos and fingerprints... not an investigatory test. They did cite a SCOTUS opinion from 1975 for the premise of necessary administrative steps in general but, when you look at the actual supreme court opinion in context you can tell the 14th COA was really stretching... to copy from another of today's threads: You keep using that word, "adminstrative". I don't think it means what you think it means.

Alex, stop talking about the Intoxilyzer. Seriously. Rothgery said right to counsel attaches at Article 15.17 hearing. It said nothing about the Intoxilyzer, nothing about when an Article 15.17 hearing must be done, and nothing to the effect that, since the right to counsel attaches at an Article 15.17 hearing, that the officers cannot administer an Intoxilyzer prior to that hearing (or even after). You're reading the case out of context.

quote:

---

Originally posted by AlexLayman:
Is there a distinction between attaching and invoking?

I thought this distinction was in Patterson?

---

Right, but Patterson held that simply reaching an attachment of the Sixth Amendment right to counsel didn't mean that the police couldn't initiate communication where the defendant did not otherwise attempt to avail himself of that right. Patterson never asked for or otherwise asserted his right. So, the question really becomes whether there's a distinction between requesting appointment of counsel (after being informed you have the right to do so by a neutral magistrate and after the Sixth Amendment right to counsel attaches) and the invoking of that Sixth Amendment right to counsel. Taking my meager (and insane) contributions out of the equation, it appears that reasonable minds can differ about this legal principle.

Holloway does, for example, interpret Patterson in terms of interference with an established attorney-client relationship, but the CCA, in that case, was not faced with the situation of whether police could interrogate a defendant who had requested and not yet received an attorney. Neither was the Supreme Court in Patterson.

I can't get that free junk to work any better that Westlaw.

Another rub is that magistration isn't set up the same way as Miranda warnings. Magistration is telling people their rights. Nobody tells the defendant if you want your lawyer now, you can't talk to the police without your lawyer. Is asking counsel to be appointed really saying you only want to talk through counsel, or is it just saying I want a lawyer so I can get out of jail?

Since, to talk with this person, law enforcement must again inform the defendant of his rights, including right to appointed counsel, and obtain an affirmative waiver, what right is being violated?

So he didn't invoke his right because he wasn't ever told he could waive it?