The Iowa Supreme Court was unable to decide Friday when someone is entitled to counsel, though a drunk driver's conviction stands. A three-three-one ruling from the high court leaves the door open for future constitutional challenges.
In September 2014, 29-year-old John A. Senn was arrested on suspicion of drunk driving in Des Moines on Court Avenue. Senn was taken to the Des Moines police station where he refused to take a breathalyzer test until he spoke with his attorney.
A the station Senn called his lawyer, reaching her a little before 3:00 am. When Senn asked for privacy, the arresting officer told him he could only have privacy if the attorney came to the station.
The attorney could not come to the police station. Senn eventually consented to the breathalyzer and blew a 0.14. He was charged with an OWI.
In court Senn argued the breathalyzer test results shouldn’t be used as evidence since the lack of a private phone violated his attorney-client privilege. The district court denied the motion.
Senn was convicted and sentenced to one year incarceration, and he appealed. He argues the evidence of his breathalyzer test should have been suppressed.
Three Iowa Supreme Court Justices agree with Senn, and three others say attorney-client privilege does not apply during the investigative stage, but only kicks in after someone is formally charged.
In a solo concurrence Chief Justice Mark Cady says there isn’t evidence Senn lacked effective counsel just because his phone call wasn’t private. And while Cady declined to rule on the exact moment a person is entitled to counsel, he says Senn's constitutional rights had not been violated so the conviction stands.
With no majority, the high court will likely revisit this issue.