Posted on Nov 29, 2013

On Sunday, November 24, 2013, Salem County attorney Michael Mulligan was arrested at the scene of someone being investigated for drunk driving.  State troopers pulled over a David Stout in Pilesgrove Twp. for driving a vehicle matching the description of one that had left the scene of an accident earlier. As the vehicle allegedly smelled of alcohol, Mr. Stout was asked to exit the car and perform a field sobriety test.

It was during this test that attorney Mulligan arrived at the scene, got out of his car, and walked over. Here is where the facts differ on what happened.  The troopers state that they asked him to step away as they completed the test, but that Mulligan continued to move forward “despite repeated warnings.” When Mulligan supposedly moved past them to Mr. Stout, he was arrested for obstruction.

Why Was the Attorney There?

According to Mulligan, who released a statement through his attorney, William Rozanski of Woodbury, he was there representing Mr. Stout as his lawyer and announced himself as such to the troopers.  He also asked to be permitted to confer with his client.

As he was being handcuffed, he then tried to tell his client to rely on his 5th Amendment rights by not answering any questions or making any statements.  Mulligan states that he was at the periphery of the scene at all times and on the public roadway.

How Does This Threaten Constitutional Rights?

How this case plays out will be very interesting from the point of view of Mr. Stout’s constitutional rights. Although the police have a right to investigate and conduct a field sobriety test, if Mr. Mulligan did not interfere with that, and stayed at the periphery as he claims, did the police interfere with Mr. Stout’s 6th amendment right to counsel and 5th Amendment right against self-incrimination?

The case is also interesting as to whether a suspect in a drunk driving case has a right to the advice of counsel during the investigation and arrest process?  Can the police ask questions, or gather potentially incriminating evidence through a field sobriety test, while denying the suspect access to his lawyer?

If this were in an interrogation room at the police barracks it would be much clearer, but what about at the scene?  If Mulligan is ultimately convicted of obstruction, will this have a chilling effect in future cases concerning someone’s constitutional rights?  That is the ultimate question.

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Steven J. Richardson
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Bankruptcy, Collections, Student Loan, DUI and Traffic Court attorney in Woodbury, NJ.