Since the landmark decisions of Miranda v. Arizona and Escobedo v. Illinois, state and federal courts have struggled to set the boundaries on further interpretation of one's constitutional rights in areas other than the criminal law. For example, those states which have enacted implied consent laws have been consistently confronted with the assertion of these constitutional arguments by those convicted of driving while under the influence of intoxicating liquor. By and large the courts sitting in implied consent states have remained impervious to the general trend generated by Miranda and Escobedo by narrowly construing the rights of those individuals accused of driving while under the influence. Recently, several states have for the first time dealt with the issue of whether an accused suspected of driving under the influence should be afforded consultation with or have access to counsel as a condition precedent to taking a blood, breath or urine test. The vast majority of states have refused to allow the right to counsel in these cases. Initially, this Comment attempts to determine the effect of Pickard v. Director of Motor Vehicles on the general course charted by prior Nebraska cases. Secondly, the language contained in the Pickard dictum is examined and compared to decisions from other states operating under an implied consent law. The following topics are used for the comparison: (1) the operation of an appropriate factual context, (2) the operation of the civil and criminal proceedings, (3) the operation of the critical stage argument, and (4) the operation of the Miranda warnings.
George B. Klippert,
Constitutional Law—The Right to Counsel for Drunk Drivers: Pickard v. Director of Motor Vehicles, 184 Neb. 13, 165 N.W.2d 96, motion for rehearing overruled, 184 Neb. 573, 169 N.W.2d 460 (1969),
49 Neb. L. Rev. 670
Available at: http://digitalcommons.unl.edu/nlr/vol49/iss3/9