When You Have the Right to Request an Attorney

Question: When does a person who is being investigated have the right to request an attorney?

Answer: Usually during what the courts have interpreted to be “critical phases” of an investigation. So, for example, times that they wouldn’t have a right to an attorney, at least in the state of Florida, would be like in a DUI situation and someone is determining or deciding whether or not to take or not take a breath test and they say, “Well, I want to speak to my attorney.” In that type of situation, the courts will say that the person does not have the right to an attorney; that is not a critical phase. Versus a situation where someone has been the target of an investigation and they are continuing to determine whether or not somebody did or didn’t do a crime in a felony situation, I’ll give you that example, and they say, “Hey listen, I want to speak to an attorney before I begin any questioning or answer any of your questions.” So those are the two different scenarios where you would see someone would have a right to an attorney versus not have a right. Usually in an investigation, we get a lot of these types of calls. Usually if someone is being investigated for a crime, we advise them—whether it’s a simple leaving the scene of an accident or whether or not it’s a sex crime where someone is alleging that maybe they were raped, let’s say—we always advise somebody to invoke their rights. Tell them that they’ve spoken with an attorney and they’re not going to do any further questioning without an attorney being present.

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