Can a lawyer advise a DUI client to refuse chemical testing, given the uncertain law on the right to refuse?

Plain-English summary

The committee was asked to reconsider Opinion 86-05, which had concluded that a lawyer may not advise a client arrested for DUI to refuse a chemical test. That earlier opinion rested on the Arizona Supreme Court's decision in Campbell v. Superior Court that a driver has no right to refuse, only the physical power. A new Court of Appeals decision, State v. Superior Court of Pima County, stated that the right to refuse the test had been granted by statute, A.R.S. Section 28-691(D), though refusal carries consequences including admission of the refusal as evidence.

Because the earlier conclusion was explicitly premised on the law denying any right to refuse, the opinion reconsidered it in light of the new decision. The committee reasoned that ER 1.2(d) forbids counseling conduct the lawyer knows is criminal or fraudulent, and that refusing the tests is neither. The central question under ER 3.4(a), whether refusing the tests "unlawfully" obstructs access to evidence, now turned on whether there is a right to refuse, and with the law uncertain the committee found no ethical impropriety in advising a client not to submit. It reached the same conclusion under ER 3.4(d), since the statute appears to provide a right to refuse with consequences set by law, and under ER 8.4(d), finding no conduct prejudicial to the administration of justice.

The opinion concluded that an attorney may, without violating the Rules of Professional Conduct, advise a client arrested for DUI to refuse blood, breath, or urine tests. It emphasized, however, that the preferable course is for the lawyer to fully advise the client of the consequences of refusing and to let the client make the decision, both because the rules favor helping clients make informed decisions (ER 1.4(b), ER 1.2, ER 1.14) and because, if the committee's understanding of the law proved incorrect, a lawyer who advised refusal might face discipline.

Currency note

This opinion was issued in 1987, before the State Bar of Arizona's adoption of the 2003 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Did this opinion change the committee's position on advising a DUI client to refuse testing?

A: Yes. The opinion reconsidered Opinion 86-05 and concluded that, given the uncertain law on the right to refuse, a lawyer may advise a DUI client to refuse the tests without violating the rules.

Q: What changed the analysis from the earlier opinion?

A: A Court of Appeals decision, State v. Superior Court of Pima County, stated that A.R.S. Section 28-691(D) grants a statutory right to refuse, with consequences; the earlier opinion had assumed no such right existed.

Q: What course did the opinion say was preferable?

A: The opinion concluded the preferable course is for the lawyer to fully advise the client of the consequences of refusing and to let the client decide.

Background and rules framework

The opinion applied ER 1.2 (scope of representation, including ER 1.2(d) on counseling crime or fraud), ER 1.4(b) (informed decisions), ER 1.14 (clients with diminished capacity), ER 2.1 (advisor), ER 3.4(a) and (d) (fairness; obstruction of evidence and discovery), and ER 8.4(d) (conduct prejudicial to the administration of justice). It read these against the Arizona implied-consent statute, A.R.S. Section 28-691, and the conflicting treatments in Campbell and State v. Superior Court of Pima County.

Citations and references

Rules of Professional Conduct:

• ER 1.2 / Model Rule 1.2 (scope; counseling crime or fraud)
• ER 1.4(b) / Model Rule 1.4 (communication; informed decisions)
• ER 1.14 / Model Rule 1.14 (client with diminished capacity)
• ER 2.1 / Model Rule 2.1 (advisor)
• ER 3.4(a), (d) / Model Rule 3.4 (fairness; obstruction of evidence and discovery)
• ER 8.4(d) / Model Rule 8.4 (misconduct)

Statutes:

• A.R.S. Section 28-691 (implied consent law)

Cases:

• Campbell v. Superior Court, 106 Ariz. 542, 479 P.2d 685 (1971)
• State v. Superior Court of Pima County (Ariz. Ct. App. 1986), statutory right to refuse with consequences

Other opinions cited:

• Ariz. Op. 86-05: the prior, contrary conclusion this opinion reconsiders

See also

• AZ Ethics Op. 86-05: Advising a DUI Client to Refuse a Chemical Test
• AZ Ethics Op. 97-06: Advising a Client Facing Criminal Exposure
• AZ Ethics Op. 05-05: Client Perjury and Candor to the Tribunal

Source

• Landing page: https://tools.dev.azbar.org/RulesofProfessionalConduct/ViewEthicsOpinion.aspx?id=554

Original opinion text

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

2/1987

Attorney may advise client arrested for DWI to refuse to submit to chemical tests, the preferable course, however, is to advise client of consequences for such conduct.

FACTS

The inquiring attorney requests that we reconsider our Opinion No. 86-5 in light of a new opinion of the Arizona Court of Appeals, State v. Superior Court of Pima County, _ Ariz. , _ P.2d , (2 CA-CIV 5598, June 2, 1986).

QUESTION

May an attorney ethically advise a client arrested for driving while intoxicated to refuse to undergo blood, breath or urine tests?

ETHICAL RULES INVOLVED

ER 1.2(a) & (d). Scope of Representation

ER 1.4(b). Commun-ication

ER 1.14. Client Under a Disability

ER 2.1. Advisor

ER 3.4(a) & (d). Fairness to Opposing Party and Counsel

ER 8.4(d). Misconduct

OPINION

The request for our earlier Opinion No. 86-5 was prompted by Judge Livermore's dissenting opinion in State v. Rolland, 147 Ariz. 463, 711 P.2d 602 (App. 1985), affirmed 147 Ariz. 453, 711 P.2d 592 (1985).

In our prior Opinion No. 86-5 we pointed out that this committee "cannot decide questions of law.” Our opinion that an attorney may not, consistent with the Rules of Professional Conduct, advise his client to refuse to submit to a blood alcohol test, was explicitly premised on the decision of the Arizona Supreme Court in Campbell v. Superior Court, 106 Ariz. 542, 479 P. 2d 685 (1971), that "a person does not have a right to refuse to submit to a chemical test only the physical power.” 106 Ariz. at 550, 479 P.2d at 693 (emphasis in original).

In its recent decision, State v. Superior Court of Pima County, ___Ariz, _, P.2d ___ (2 CA-CIV 5598, June 2, 1986) the Arizona Court of Appeals stated:

There is, however, no constitutionally protected liberty to refuse to take an intoxilyzer test.... “The right to refuse the test has been granted by statute, A.R.S. § 28-691 (D). That refusal, however, carries with it consequences, including introduction of the evidence in trial."

In its recent decision, the Court of Appeals does not discuss the previously quoted portion of the decision of the Arizona Supreme Court in Campbell.

If our understanding of the law in Arizona with regard to the right of a defendant to refuse the tests was incorrect, then the conclusion we reached would also be incorrect.

In our prior opinion, we noted that ER 1.2(d) forbids a lawyer to “counsel a client to engage...in conduct that the lawyer knows is criminal or fraudulent." We remain unaware of any legal provision that makes it either criminal or fraudulent to refuse to take the tests.

In our prior opinion, we also pointed out that ER 3.4(a) provides that a lawyer shall not, "unlawfully obstruct another party's access to evidence” and “shall not counsel" his client “to do any such act." The key issue remains whether to refuse the tests is to “unlawfully” obstruct another party's access to evidence. Where the state of the law is so uncertain with regard to whether there is a right to refuse the tests, we do not think that there is any ethical impropriety in advising a client not to submit to the tests.

ER 3.4(d) provides that a lawyer shall not “in pretrial procedure,... fail to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party.” A.R.S. § 28-692 (K) provides that, if the client refuses to submit to the tests, "evidence of refusal is admissible in any civil or criminal action or proceeding . . .”

Here, again, it appears that there may be a right to refuse to provide the requested discovery and that the consequences of the exercise of that right are provided by the statute. Again, in such circumstances, we do not believe that the attorney who advises his client not to take the tests has committed a violation of the ethical rule.

We wish to emphasize that this committee “cannot decide questions of the law." The law, as we currently understand it, is subject to change by the legislature and the courts, and further changes or clarification of the law relating to implied consent might change the ethical duties of attorneys. ER 8.4 (d) provides that it is professional misconduct for a lawyer to “engage in conduct that is prejudicial to the administration of justice." Since we find no violation of any of the rules specifically applicable in this situation, we do not feel that advising a client to refuse a breathalyzer test should be considered a violation of ER 8.4 (d).

In numerous provisions the Rules of Professional Conduct emphasize that lawyers should assist their clients in making informed decisions, rather than making critical decisions for a client. For example, ER 1.4 (b) states: "A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." See also ER 1.2 (in a criminal case a lawyer shall abide by the client's decision, after consultation with the lawyer, as to ... whether the client will testify) and ER 1.14 (clients whose ability to make decisions is impaired).

Our prior opinion emphasized ER 1.2(d) which provides:

"A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal conseguences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.”

In advising a client with regard to the blood alcohol test, the preferable course of conduct is for the lawyer to advise the client of the legal consequences and to permit the client to make his or her own decisions. Such a course of action is not only

consistent with the obligations that the attorney owes to his client to fully inform him or her, but also permits the attorney to avoid the risk that, if this committee's understanding of the legal issues involved in this opinion is incorrect, the attorney might be subject to disciplinary action for advising the client to refuse the tests.

We accordingly conclude that an attorney may, without violating the Rules of Professional Conduct, advise a client arrested for driving while intoxicated to refuse to undergo blood, breath or urine tests. Nevertheless, the preferable course of conduct is for the attorney to fully advise the client of the consequences of refusing to undergo the tests and to permit the client to make his or her own decision.

© State Bar of Arizona 1987