84-1.

• Case Date: January 13, 1984
• Court: Alaska

Alaska Ethics Opinion 1984. 84-1. Ethics Opinion No. 84-1Propriety 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...