Why Attorney-Client Privilege Matters in DUI Cases
In Oklahoma, the attorney-client privilege protects communications between you and your attorney. With very limited exceptions, your attorney must keep the content of communications with you confidential. If you have been charged with a DUI in the state, you should be aware of how attorney-client privilege works, what the exceptions to it are, and when it does not apply so you can most effectively work with your lawyer on your case.
The Oklahoma statute that defines attorney-client privilege describes it as the client’s “privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client …” 12 O.S. § 12-2502(B). These communications can be between the client and the attorney, between representatives of either, or between a few limited others.
Not all communications between clients and attorneys are protected. If the client and attorney intend that the information be disclosed to a third person, then the information is not privileged. For instance, speaking about a case at a crowded bar full of people listening to the conversation may lead to the conclusion that the client and attorney did not intend that their conversation be confidential. Small talk between you and your attorney in the elevator is not privileged because you were not talking with the intent of receiving legal advice.
By telling a third party about the content of conversations with an attorney, the client can waive the privilege. Waiver means that the information is no longer privileged, and a prosecutor or judge could ask the client to testify about the communications. An attorney’s disclosure of the content of communications has the same effect. If the waiver is inadvertent, you or the attorney can attempt to cure it. See 12 O.S. § 12-2502(E).
In a DUI case, you may share important information about what you were doing before you were arrested or how much you had to drink with your attorney. If you are on the witness stand in court, the prosecutor could ask you, “How much did you have to drink before you got in the car?” The number of drinks you had is not privileged information, because it is a fact that existed before any communications between you and your attorney. However, if the prosecutor asks you, “What did you tell your attorney right after you were arrested about how many drinks you had?,” this information would be privileged because you discussed preparing to testify with your attorney.
Importantly, no privilege exists if you seek an attorney’s services to “enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud.” 12 O.S. § 12-2502(D)(1). Further, attorneys may have a duty to report a client’s future intent to commit a crime or fraud under some circumstances.
Seek out a DUI attorney with the know-how to tackle your case the right way from the start. Clint Patterson, Esq., of Patterson Law Firm, a former Tulsa prosecutor, now teaches other attorneys and law enforcement about sobriety testing techniques and defends Oklahoma drivers charged with DUIs. To schedule a case evaluation, visit Patterson Law Firm online or call Clint’s office at (918) 550-9175.