by Lonnie Burton

On June 24, 2016, the Supreme Court of Iowa rejected the appeal of man who claimed his Sixth Amendment right to counsel was violated when he was denied the right to make a private phone call to his attorney for advice as to whether he should comply with or refuse a chemical breath test. The state's high court found that no such right to counsel attaches prior to the initiation formal charges.

John Arthur Senn, Jr. was arrested on Labor Day 2014 for suspicion of driving under the influence of alcohol. A preliminary breath test issued at the scene showed that Senn had a blood alcohol content of 0.165, more than twice the legal limit in Iowa. Senn was arrested for failing to obey a traffic signal and drunk driving and transported to the Des Moines police station for a chemical breath test.

At the station, Senn asked to call a lawyer for advice on whether to consent to the breathalyzer. Under Iowa law, am arrestee has one hour to comply with the test, or face an automatic two-year suspension of his driver's license for a refusal. Senn had trouble reaching his own attorney at 3:00 a.m., but eventually found one. He asked the officer for privacy but was told he could only have attorney-client privilege if the attorney came to the station. Unable to have a private attorney conversation, Senn eventually consented to the breath test, which showed he had a blood alcohol content of 0.140.

Senn was charged with driving while intoxicated, and he moved to dismiss the charge based on a violation of his attorney-client privilege under the Sixth Amendment and the Iowa Constitution. According to Senn's argument, the implied-consent procedure is a "critical stage of the prosecution" under the Iowa Constitution because it "involves a choice that has significant consequence of criminal liability."

The trial court denied Senn's motion to dismiss the charges, holding that the right to counsel doesn't attach until Senn was charged with an offense and thus there was no basis for excluding any of the evidence.

Senn appealed, which went directly to the Iowa Supreme Court, who affirmed. The high court recognized an arrestee has a "limited statutory right to counsel" before making the decision to take or refuse a chemical breath test, but found that Iowa law allows an officer to be present during an arrestee's phone call with a lawyer. The Supreme Court agreed with the trial court that a full right to private attorney-client privilege does not attach until "the initiation of adversarial proceedings against the defendant."

The court further found that the Iowa Constitution's right-to-counsel guarantee afforded Senn no greater protection than the United States Constitution.

Using the plain meaning of the text of the Sixth Amendment language that in all "criminal prosecutions" the "accused" shall be afforded, among other things, the right to have the assistance of counsel, the court ruled Senn was yet to be formally "accused" and no prosecution had yet been initiated because no document had yet to be filed in court. Thus, "Senn did not have the right to counsel at the time of his breath test."

The court also noted sound policy reasons for not attaching a right to a private jail phone conversation. The jailers would have no way to confirm that the person on the other end of the phone was indeed an attorney, the court said. Requiring privacy in those circumstances would make it "easy to imagine detainees taking advantage of private phone calls to inform confederates to flee or get rid of evidence," concluded the court.

The court held the right to private counsel phone consultation does not apply until formal charges have been filed, that Senn's rights were not violated when the arresting officer remained in the room during his attorney calls, and "we therefore affirm his conviction." See State of Iowa v. Senn, No. 15-0624 (S. Ct. IA), June 24, 2016.

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