Could defense counsel tell a motorist to refuse an evidentiary alcohol test under newly enacted H.70?

Plain-English summary

The committee assumed the conditions of newly enacted H.70 were met, so refusal of the requested evidentiary alcohol test was a crime in the situation presented. It expressly left legal constraints outside its jurisdiction.

Applying then-current DR 7-102(A)(7), the committee said defense counsel could not advise the client to refuse the test because that would counsel conduct known to be illegal. Counsel could explain the consequences of taking or refusing the test and discuss a good-faith argument for contesting the new law under DR 7-102(A)(2).

The opinion also discussed proposed Vermont Rules based on Model Rules 1.2(d) and 3.1. It noted that the proposed frivolousness limit would add an objective element; it did not treat those proposed provisions as the rule then in force.

Currency note

This opinion was issued in 1997 under Vermont's former Code of Professional Responsibility. The Vermont Supreme Court's rules history says the Rules of Professional Conduct replaced the Code and applied to lawyer conduct after September 1, 1999; the court later made comprehensive amendments in 2009. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement.

Common questions

Q: Could counsel recommend refusal?

A: No. On the stated assumption that H.70’s criminal-refusal conditions were met, the committee said counsel could not advise the client to refuse.

Q: Could counsel explain what taking or refusing the test would mean?

A: Yes. The committee permitted an explanation of the legal consequences and a good-faith argument contesting the law.

Q: Did the committee decide the separate legal consequences of counsel’s advice?

A: No. It said legal constraints were beyond its jurisdiction.

Background and rules framework

The opinion applied former DR 7-102(A)(7) and (A)(2). It compared proposed Vermont Rules based on Model Rules 1.2(d) and 3.1, without presenting them as effective Vermont law.

Citations and references

Vermont Code of Professional Responsibility:

• DR 7-102(A)(7); DR 7-102(A)(2).

Model Rules discussed as proposed Vermont provisions:

• Model Rule 1.2(d); Model Rule 3.1.

Statute and other opinion cited:

• H.70; 13 V.S.A. §4; Alaska Bar Ethics Opinion 84-1.

See also

• Vermont Ethics Op. 94-07: Collecting a tenant’s judgment

Source

• Landing page: VBA topic page
• Original PDF: Vermont Advisory Opinion 97-06
• Rules history: Vermont Rules of Professional Conduct, “These rules apply to lawyer conduct after September 1, 1999.”