May a defense lawyer advise a client under DWI arrest to refuse to take a breathalyzer test?

Plain-English summary

The Committee addressed whether a defense attorney may advise a client under arrest for driving while intoxicated to refuse a breathalyzer test, prompted by reports that defense attorneys were telling arrested clients by phone not to submit. Under AS 28.35.032(f), refusal to submit when lawfully arrested for DWI is a class A misdemeanor. The opinion concluded that a recommendation to refuse is improper without the further advice and discussion it outlined.

The opinion worked through the competing principles of the Code. A lawyer must not counsel or assist a client in conduct the lawyer knows to be illegal or fraudulent (DR 7-102(A)(7)) and must not advance a claim or defense unwarranted under existing law, though the lawyer may advance one supported by a good-faith argument for extending, modifying, or reversing existing law (DR 7-102(A)(2)). At the same time, the lawyer must represent the client zealously within the bounds of the law (DR 7-101(A)(1); EC 7-1), which may be uncertain (EC 7-2), and the lawyer's role differs as advocate or adviser (EC 7-3 to 7-5; EC 7-22). The opinion drew on the ABA Standards (Prosecution and Defense Function), which permit a lawyer to give a candid opinion on the interpretation and validity of a law while cautioning that the lawyer may not knowingly assist conduct the lawyer believes illegal.

Applying these to the breathalyzer question, the opinion concluded the attorney as adviser should not simply tell the client to refuse, but may discuss the likely court decision, the legal consequences, and the lawyer's opinion on the statute's validity; the attorney as advocate should not actively aid a refusal, but may in good faith test the statute by seeking its modification or reversal. It noted that Alaska courts had held a defendant has no constitutional right to refuse a breathalyzer and had upheld AS 28.35.032(f) against constitutional challenge (Jensen v. State), while recognizing a right to a reasonable attempt to communicate the consequences of a refusal. The opinion summarized the attorney's duties and concluded the lawyer should not unilaterally direct the client to refuse; the decision should ultimately be made by the client after receiving the attorney's advice.

Currency note

This opinion was issued in 1984, before the Alaska Bar Association's adoption of the Alaska Rules of Professional Conduct (it applies the former Code of Professional Responsibility) and before the 2009 revisions to those rules. The cited statute and case law may have changed. Treat this page as historical context, not current guidance. Verify against current rules and current law before relying on any specific rule, statute, or consequence mentioned here.

Common questions

Q: Can a defense lawyer tell a DWI client to refuse the breathalyzer?

A: The opinion concluded that simply directing the client to refuse is improper, because refusal is itself a class A misdemeanor under AS 28.35.032(f), and the lawyer may not counsel conduct the lawyer knows to be illegal.

Q: What advice about a breathalyzer may a defense lawyer properly give?

A: The opinion concluded the lawyer may explain the legal consequences and likely judicial response to a refusal, give a candid opinion on the statute's scope and validity, and advise on the legality of prospective conduct.

Q: Can the lawyer challenge the breathalyzer statute?

A: The opinion concluded the lawyer may, as an advocate, present any permissible construction of the law and in good faith test the statute by seeking its modification or reversal, even after it was upheld in Jensen v. State.

Q: Who ultimately decides whether to take the test?

A: The opinion concluded the decision should ultimately be made by the client after receiving the attorney's advice, not unilaterally directed by the lawyer.

Background and rules framework

The opinion applied the former Code's rules against assisting illegal conduct and advancing unwarranted claims (DR 7-102(A)(7), DR 7-102(A)(2)), the duty of zealous representation within the law (DR 7-101(A)(1); EC 7-1 to 7-5, EC 7-22), and the ABA Standards on the defense function, subjects now treated by Model Rule 1.2 (scope of representation; counseling crime or fraud) and Model Rule 3.1 (meritorious claims and good-faith arguments to change the law). It read these against AS 28.35.032(f) and the Alaska decisions in Jensen, Graham, Palmer, Coleman, and Williford.

Citations and references

Rules of Professional Conduct (former Code; cf. Model Rules):

• DR 7-102(A)(7) (not assisting illegal or fraudulent conduct) (cf. Model Rule 1.2(d))
• DR 7-102(A)(2) (no unwarranted claim, but good-faith argument to change the law allowed) (cf. Model Rule 3.1)
• DR 7-101(A)(1), EC 7-1 to 7-5, EC 7-22 (zealous representation within the bounds of an uncertain law)

Statutes:

• AS 28.35.032(f) (refusal to submit to a breath test is a class A misdemeanor); AS 28.35.032(e); AS 28.35.030 et seq.

Cases:

• Jensen v. State, 667 P.2d 188 (Alaska App. 1983), AS 28.35.032(f) upheld against constitutional challenge
• Graham v. State, 633 P.2d 211 (Alaska 1981); Palmer v. State, 604 P.2d 1106 (Alaska 1979); Coleman v. State, 658 P.2d 1364 (Alaska App. 1983), no constitutional right to refuse
• Williford v. State, 653 P.2d 339 (Alaska App. 1983), right to communicate consequences of refusal

See also

• Alaska Ethics Op. 2006-2: Client Instructions on Means in Criminal Cases
• Alaska Ethics Op. 88-2: Avoiding Consent Under a Due-on-Sale Clause
• Alaska Ethics Op. 84-4: Drafting a Surrogate Mother Contract

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/84-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Ethics Opinion No. 84-1
Propriety of Advice to a Defendant to Refuse to Submit to a Breathalyzer
Test.
This Committee has been requested to address the question of the ethical
propriety of a defense attorney advising his client not to submit to a
breathalyzer test when under arrest for driving while intoxicated. This
Committee concludes that such a recommendation by an attorney is improper
without the addition of further advice and discussion as outlined below. An
attorney, however, should present legal theories which the attorney in good
faith believes might challenge the validity of the statute: advise the defendant
concerning the legality of prospective conduct; explain the legal consequences
and judicial response to any refusal to take a breathalyzer in light of recent
court decisions; and submit his professional opinion of the scope, meaning and
validity of the involved laws.
I
This request for an Ethics Committee opinion stems from the Alaska
District Attorney's Office's observation that it has been encountering a growing
number of cases in which defense attorneys expressly tell their clients by
phone who are under arrest for driving while intoxicated not to submit to a
breathalyzer test. AS 28.35.032(f) provides that refusal to submit to a
breathalyzer test when lawfully arrested for D.W.I. constitutes a class A
misdemeanor offense.
A request has been lodged for an opinion which might clarify a defense
attorney's ethical responsibilities in the above context and which addresses
whether or not such attorneys are in violation of Alaska Canon of Professional
Responsibility DR 7-102(A)(7) providing:
In his representation of a client, a lawyer shall not . . . counsel or assist his client
in conduct that the lawyer knows to be illegal or fraudulent.
II
The Ethics Committee views this request as having great importance to
both the defense bar and the state prosecutor's office. The situation is of
significance to all attorneys and clients involved in the process. Nonetheless,
the matter is of first impression within our state and appears guided only by
the broadest of ethical considerations. Further, the present question is
addressed within the reality that the subject statute (AS 28.35.032(f)) has been
the topic of apparent constitutional issues not yet fully resolved by our Alaska
State Supreme Court. (see endnote 1) It is within the context of the broad
(sometimes competing) ethical consideration and of the legal controversies that
this Committee fashions its response.
1

III
First, there are those canons of responsibility and ethical considerations
which tend to limit professional conduct. It is a basic tenet of professional
responsibility that a lawyer shall not violate a Disciplinary Rule [DR 1102(A)(1)] As such any attorney should seek to maintain the integrity of his or
her profession. [Canon 1] On the one hand the legal practitioner in
representing his client shall not knowingly advance a claim or defense that is
"unwarranted under existing law;" on the other hand the attorney may advance
such a claim or defense if "it can be supported by good faith argument for an
extension, modification, or reversal of existing law." [DR 7-102(A)(2)] It is within
this context that the lawyer is required not to counsel or assist his client in
conduct that the lawyer knows to be illegal or fraudulent. [DR 7-102(A)(7)]
Second, there are those ethical considerations which seem to lessen the
parameters within which the attorney practices. It is commonly understood
that a lawyer shall not intentionally fail to seek the lawful objectives of his
client through reasonably available means permitted by law and the
Disciplinary Rules [DR 7- 101(A)(1)]. The accepted rule is that within the
bounds of the law it is the "duty" of a lawyer to represent his client "zealously."
[EC 7-1] "The bounds of the law in a given case are often difficult to ascertain."
[EC 7-2] The limits and meaning of a particular law may be made doubtful by
changing constitutional interpretations, inadequately expressed statutes or
opinions, and developing judicial or public attitudes. Id.
The actions of an attorney may depend on whether he is serving as
"advocate" or "adviser" particularly where the bounds of law are not certain.
[EC 7-3] The advocate may urge "any permissible construction of the law
favorable to his client." [EC 7-4] The adviser should give his opinion as to what
he believes would "likely be the ultimate decision of the courts." [EC 7-5]
Notwithstanding a court's likely decision, a client or his attorney may, in good
faith and within the framework of the law, "take steps to test the correctness of
a ruling of a tribunal." [EC 7-22]
IV
The consequence of the above canons and considerations is that the legal
professional who represents a client accused of D.W.I. may be subject to
apparently competing principles. The canons require the attorney to represent
his client zealously; but he must do so within the bounds of the law even
though those legal parameters may be uncertain. The considerations tell the
lawyer he is not to assist his client to violate the law; but he is permitted to test
or challenge the law if available arguments for reversal may be made in good
faith.
2

Counsel for an accused is "an essential component" of the administration
of criminal justice. ABA Standards, Prosecution and Defense Function (1971) S
1.1(a). However, it is within this role that possible dichotomies arise relative to
this essential component. On the one hand, the protection of the client's rights
may require the attorney "to resist the wishes of the judges" on some matters
which may require him "to appear unyielding and uncooperative at times." Id.
at 173. At the same time, the lawyer is not the alter ego of his client. The
counselor should maintain the proper professional detachment and conduct
himself according to professional standards. Id. at 174.
Upon the present question, the defense attorney's role in defining his
component of criminal justice is a complex issue. Defense counsel may believe
that the protection of his client's rights require him to appear unyielding in his
challenge to the validity of AS 28.35.03(f) and thereby seem uncooperative if he
in good faith seeks reversal of the present law. However, the lawyer must
maintain his professional independence and objectivity. The counselor should
not obstruct justice, and should advise his client of the likely decision of a
court and practical effect if the statute is violated particularly in light of the
Jensen v. State decision. But, as an advocate, he may present any permissible
construction of the law favorable to such a good faith test of the correctness of
the statute.
The attorney's role during advice and service on anticipated illegal
conduct is further fraught with complexity. It is a lawyer's duty to advise his
client to comply with the law, but this same attorney may advise concerning
"the meaning, scope and validity of a law." ABA Standards, Prosecution and
Defense Function (1971) S 3.7(a). The lawyer is cautioned that it is
unprofessional to counsel his client in or knowingly assist his client to engage
in conduct which he believes to be illegal. Id. S 3.7(b). Indeed, the commentary
to section 3.7(b) continues to define the exact nature of its limitations. The
lawyer must perform his function "within the law" and is not immune from
responsibility if he "aids and abets" the commission of a crime. Id. at 220.
However, justice requires that citizens be entitled to advice concerning the
legality of prospective conduct. Therefore, an attorney properly may give his
"candid opinion on the interpretation" which may be given to any provision of
law, as well as his "opinion on its validity." Id. at 220 citing EC 7-l to 7-3. It
seems clear that the lawyer is not assisting in illegal conduct nor performing
outside the law, when he advises his client on the legality of possible conduct
and submits his opinion concerning the validity of the law at issue.
In the instant matter, the professional duties may partially depend on
how the attorneys role is viewed. The counselor as an "adviser" should not
simply tell his client to refuse a breathalyzer, but rather may discuss the likely
court decision and legal consequences of such a decision, as well as his
3

opinion on the validity of AS 28.35.032(f). The counselor as "advocate" should
not actively aid his client in any refusal of the breathalyzer, but in representing
his client's interest within the bounds of the law may in good faith test the
validity of the newly enacted statute by seeking its modification or reversal. Any
challenge to AS 28.35.032(f) may have been made more difficult by the
Appellate Court's holding in Jensen v. State. Nonetheless, it is possible that an
imaginative attorney as a zealous advocate may still in good faith believe the
statute is subject to some conceivable attack.
An attorney should not simply direct his client to refuse the breathalyzer
without further discussion of the nature and consequences of such a refusal.
Both the Alaska Court of Appeals and the Supreme Court have held that a
defendant has no constitutional right to refuse to submit to a breathalyzer
exam. (Graham v. State, 633 P.2d 211, 214 (Alaska 1981); Palmer v. State, 604
P.2d 1106, 1110 (Alaska 1979); Coleman v. State, 658 P.2d 1364, 1365-1366
(Alaska App. 1983). AS 28.35.032(f) was recently upheld against constitutional
challenge by the Alaska Court of Appeals. (Jensen v. State, 667 P.2d 188,
(Alaska App., 1983)).
However, the Alaska Court of Appeals has recognized the right of a
defendant to a reasonable attempt to communicate the consequences of a
failure to take the breathalyzer exam in order for such refusal to be admitted as
evidence. (AS 28.35.032(e), Williford v. State, 653 P.2d 339, 342-343 (Alaska
App. 1983)).
V
In summary, the attorney's professional responsibilities in this area
include the following: to not obstruct justice; to not aid or abet through any
overt assistance a refusal to submit to a breathalyzer; to not advance an
unwarranted theory to the client except a claim or defense to the statute which
the attorney in good faith believes is supported by an extension or reversal of
existing legal theories; to not merely tell his client not to take the breathalyzer
test without further advice and discussion; to represent his client zealously; to
advocate permissible legal theories which the attorney believes challenge the
validity of the statute; to advise the client on the legal consequences and
judicial response to any refusal to take a breathalyzer; to submit advice on the
scope and meaning of the statute; and to submit his interpretation or opinion
on the validity of the applicable provisions of AS 28.35.030, et seq., ch. 117
S.L.A. 1982. In other words, the attorney should not unilaterally direct his
client to refuse a breath test. Rather, the decision to submit to a breathalyzer
should ultimately be made by the client after receiving the attorney's advice
and counsel on the subject. It is only after such a process that the attorney can
fulfill both the role of advisor and advocate.
4

Adopted by the Alaska Bar Association Ethics Committee on October 6, 1983.
Approved by the Board of Governors on January 13, 1984.
Endnote 1:
The Committee notes that our Appellate Court has held AS 28.35.032(f) does
not violate substantive due process. See Jensen v. State, 667 P.2d 188 (Alaska
App. 1983). It may still be possible that some practitioners may wish in good
faith to challenge the validity of AS 28.35.030 et seq., and seek its modification
or reversal. The merits of any such controversy shall not be addressed herein;
however, the existence of such legal issues are of significance to the present
ethical question.

5