# Denied a Public Defender: Is that legal? **URL:** \ **Category:** Factual Questions\ **Created:** [October 10, 2009, 2:47am UTC](https://boards.straightdope.com/t/denied-a-public-defender-is-that-legal/513268 "2009-10-10T02:47:25Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Honesty](https://avatars.discourse-cdn.com/v4/letter/h/f04885/32.png) [@Honesty](https://boards.straightdope.com/u/Honesty)\ **Post date:** [October 10, 2009, 2:47am UTC](https://boards.straightdope.com/t/denied-a-public-defender-is-that-legal/513268/1 "2009-10-10T02:47:25Z")
Background: Two days ago, a friend of mine had to appear in court for a DUI. The judge told him that he’d have to pay a fine and serve jail time. I asked him whether he talked with his public defender and he told me that, in order for him to get one, he’d have to make less than ~$18,000 a year. He’s been unemployed for over a year though he had a hearty savings to tap from which is now depleted. Question: How is it legal for a municipality to deny a defendant the right to a public attorney based on income requirements? Isn’t there a federal law/amendment/opinion that protects against that? ---
**Author:** ![Ferret\_Herder](https://avatars.discourse-cdn.com/v4/letter/f/e47774/32.png) [@Ferret\_Herder](https://boards.straightdope.com/u/Ferret_Herder)\ **Post date:** [October 10, 2009, 2:53am UTC](https://boards.straightdope.com/t/denied-a-public-defender-is-that-legal/513268/2 "2009-10-10T02:53:13Z")
Just going by the ruling behind the [Miranda warning](http://en.wikipedia.org/wiki/Miranda_warning), I’d say the answer seems to be no: the Supreme Court said “…and that, if he or she is indigent, an attorney will be provided at no cost to represent him or her.” Your friend isn’t indigent (yet). Editing again - and I assume that the definition of “not being able to afford an attorney” varies between states. ---
**Author:** ![Honesty](https://avatars.discourse-cdn.com/v4/letter/h/f04885/32.png) [@Honesty](https://boards.straightdope.com/u/Honesty)\ **Post date:** [October 10, 2009, 2:58am UTC](https://boards.straightdope.com/t/denied-a-public-defender-is-that-legal/513268/3 "2009-10-10T02:58:09Z")
> [@Ferret\_Herder](#): > > Editing again - and I assume that the definition of “not being able to afford an attorney” varies between states. This is in Ohio if that helps. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [October 10, 2009, 3:27am UTC](https://boards.straightdope.com/t/denied-a-public-defender-is-that-legal/513268/4 "2009-10-10T03:27:22Z")
How can he be making over $18K a year if he’s unemployed? ---
**Author:** ![racer72](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/racer72/32/3075_2.png) [@racer72](https://boards.straightdope.com/u/racer72)\ **Post date:** [October 10, 2009, 3:55am UTC](https://boards.straightdope.com/t/denied-a-public-defender-is-that-legal/513268/5 "2009-10-10T03:55:50Z")
Public defenders are rarely free, the folks that request their help generally have to pay something for their services. In my state and many others, those that request PD’s must fill out a wage and asset statement, the fee charged is dependant on the numbers on this statement. If the wages and assets exceed a specific level, the PD is denied and one must hire their own attorney. In many places, only the indigent truly get a PD for free. ---
**Author:** ![Gary\_T](https://avatars.discourse-cdn.com/v4/letter/g/3ec8ea/32.png) [@Gary\_T](https://boards.straightdope.com/u/Gary_T)\ **Post date:** [October 10, 2009, 4:53am UTC](https://boards.straightdope.com/t/denied-a-public-defender-is-that-legal/513268/6 "2009-10-10T04:53:57Z")
This is quite confusing as told. > [@Honesty](#): > > I asked him whether he talked with his public defender and he told me that, in order for him to get one, he’d have to make less than ~$18,000 a year. The wording here suggests that he did not get a public defender because he makes more than 18K/year. Which is quite at odds with… > [@](#): > > He’s been unemployed for over a year… So did he get a PD or not? Does he make over 18K/yr. or not? ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [October 10, 2009, 7:47am UTC](https://boards.straightdope.com/t/denied-a-public-defender-is-that-legal/513268/7 "2009-10-10T07:47:22Z")
He could easily have investments or other income, employed or no. ---
**Author:** ![Monty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/monty/32/47_2.png) [@Monty](https://boards.straightdope.com/u/Monty)\ **Post date:** [October 10, 2009, 12:04pm UTC](https://boards.straightdope.com/t/denied-a-public-defender-is-that-legal/513268/8 "2009-10-10T12:04:56Z")
And the court, no doubt, takes into account whatever savings the defendant has. ---
**Author:** ![twickster](https://avatars.discourse-cdn.com/v4/letter/t/ec9cab/32.png) [@twickster](https://boards.straightdope.com/u/twickster)\ **Post date:** [October 10, 2009, 2:09pm UTC](https://boards.straightdope.com/t/denied-a-public-defender-is-that-legal/513268/9 "2009-10-10T14:09:54Z")
If he’s collecting unemployment, he could be making more than $18K a year on that – in Penna. it tops out around $500/week. ---
**Author:** ![Honesty](https://avatars.discourse-cdn.com/v4/letter/h/f04885/32.png) [@Honesty](https://boards.straightdope.com/u/Honesty)\ **Post date:** [October 10, 2009, 3:14pm UTC](https://boards.straightdope.com/t/denied-a-public-defender-is-that-legal/513268/10 "2009-10-10T15:14:58Z")
> [@Saint\_Cad](#): > > How can he be making over $18K a year if he’s unemployed? I don’t know, I’ll ask him and see. I know he had saved quite a bit before he went unemployed. Edit: He was on unemployment as well. ---
**Author:** ![Honesty](https://avatars.discourse-cdn.com/v4/letter/h/f04885/32.png) [@Honesty](https://boards.straightdope.com/u/Honesty)\ **Post date:** [October 10, 2009, 3:21pm UTC](https://boards.straightdope.com/t/denied-a-public-defender-is-that-legal/513268/11 "2009-10-10T15:21:19Z")
> [@racer72](#): > > Public defenders are rarely free, the folks that request their help generally have to pay something for their services. In my state and many others, those that request PD’s must fill out a wage and asset statement, the fee charged is dependant on the numbers on this statement. If the wages and assets exceed a specific level, the PD is denied and one must hire their own attorney. In many places, only the indigent truly get a PD for free. Wow. That sucks. ☹ Thanks for the info. Its saddening to hear that this legal. I really thought that in America, everyone had the right to legal counsel regardless of income or any other measure of status. ---
**Author:** ![Claire\_Beauchamp](https://avatars.discourse-cdn.com/v4/letter/c/ec9cab/32.png) [@Claire\_Beauchamp](https://boards.straightdope.com/u/Claire_Beauchamp)\ **Post date:** [October 10, 2009, 3:25pm UTC](https://boards.straightdope.com/t/denied-a-public-defender-is-that-legal/513268/12 "2009-10-10T15:25:21Z")
> [@Honesty](#): > > I really thought that in America, everyone had the right to legal counsel regardless of income or any other measure of status. You have the RIGHT to counsel, but that doesn’t mean you are GUARANTEED counsel. ---
**Author:** ![Campion](https://avatars.discourse-cdn.com/v4/letter/c/4491bb/32.png) [@Campion](https://boards.straightdope.com/u/Campion)\ **Post date:** [October 10, 2009, 3:39pm UTC](https://boards.straightdope.com/t/denied-a-public-defender-is-that-legal/513268/13 "2009-10-10T15:39:33Z")
Jail time = usually less than a year. Prison time = usually more than a year. So my assumption is that the DUI with which your friend was charged was a misdemeanor. See [Gideon v. Wainwright](http://www.oyez.org/cases/1960-1969/1962/1962_155/) (holding that Sixth Amendment guarantees right to counsel in felony cases). See the last page of [this pdf](http://www.opd.ohio.gov/Reimbursement/rm_recoupment.pdf) for income eligibility guidelines. Don’t know if this is current or accurate, but it’s interesting. Note also that the pdf discusses repayment or sliding scale payment of fees by indigents. > [@Honesty](#): > > I really thought that in America, everyone had the right to legal counsel regardless of income or any other measure of status. Yes. Everyone does have a right to counsel; but no one has a right to free counsel unless they meet eligibility guidelines. If a man is arrested for jaywalking, and has assets of $2 million, why should the taxpayers pay for his counsel? Unless your friend’s case is more complicated than a run of the mill DUI, it shouldn’t cost more than $10K for defense (of course, if he has the money and wants, he can get Cadillac representation for a lot more, but a basic DUI lawyer isn’t all that expensive). Here is a revised OP: A friend was recently charged with a DUI, and asked for, but was refused a public defender. Some questions: 1. For what crimes does the US Constitution guarantee counsel to indigents? Gideon v. Wainwright is limited to felonies; are there cases in which courts will appoint counsel for misdemeanors? 2. What are the indigent client eligibility guidelines for Ohio? Do they take only income into account, or do assets (i.e., savings) count as well? I know we have both public defenders, appointed criminal defense counsel, and law students who post here; thoughts welcome from all. ---
**Author:** ![Tim\_T-Bonham.net](https://avatars.discourse-cdn.com/v4/letter/t/46a35a/32.png) [@Tim\_T-Bonham.net](https://boards.straightdope.com/u/Tim_T-Bonham.net)\ **Post date:** [October 11, 2009, 2:34am UTC](https://boards.straightdope.com/t/denied-a-public-defender-is-that-legal/513268/14 "2009-10-11T02:34:32Z")
> [@Campion](#): > > A friend was recently charged with a DUI, and asked for, but was refused a public defender. Some questions: > > 1. For what crimes does the US Constitution guarantee counsel to indigents? Gideon v. Wainwright is limited to felonies; are there cases in which courts will appoint counsel for misdemeanors? > > 2. What are the indigent client eligibility guidelines for Ohio? Do they take only income into account, or do assets (i.e., savings) count as well? > > I know we have both public defenders, appointed criminal defense counsel, and law students who post here; thoughts welcome from all. 1. Was he actually driving while drunk? Then jail is where he belongs, and I see no reason to be spending our tax money paying for a lawyer to help him avoid the consequences of his actions. Maybe I’s sounding like a crazy republican here, but just this summer I attended the funeral of a friend killed by yet another drunk driver. ---
**Author:** ![The\_Seventh\_Deadly\_Finn](https://avatars.discourse-cdn.com/v4/letter/t/6bbea6/32.png) [@The\_Seventh\_Deadly\_Finn](https://boards.straightdope.com/u/The_Seventh_Deadly_Finn)\ **Post date:** [October 11, 2009, 2:45am UTC](https://boards.straightdope.com/t/denied-a-public-defender-is-that-legal/513268/15 "2009-10-11T02:45:16Z")
> [@t-bonham@scc.net](#): > > 1. Was he actually driving while drunk? Then jail is where he belongs, and I see no reason to be spending our tax money paying for a lawyer to help him avoid the consequences of his actions. I gotta say, I think your plan of only providing lawyers for the innocent, while it sounds good in theory, might be a little hard to implement in practice. ---
**Author:** ![Markxxx](https://avatars.discourse-cdn.com/v4/letter/m/5daacb/32.png) [@Markxxx](https://boards.straightdope.com/u/Markxxx)\ **Post date:** [October 11, 2009, 2:50am UTC](https://boards.straightdope.com/t/denied-a-public-defender-is-that-legal/513268/16 "2009-10-11T02:50:10Z")
You often hear of people of having to “spend down” in order to qualify for various monies. This is one of the problems with the government now. It’ll help you only long after you already get into trouble. I mean I can see how someone would think this is necessary to avoid people taking advantage but still in long term it makes no sense. ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [October 11, 2009, 3:15am UTC](https://boards.straightdope.com/t/denied-a-public-defender-is-that-legal/513268/17 "2009-10-11T03:15:44Z")
> [@Markxxx](#): > > You often hear of people of having to “spend down” in order to qualify for various monies. > > This is one of the problems with the government now. It’ll help you only long after you already get into trouble. I mean I can see how someone would think this is necessary to avoid people taking advantage but still in long term it makes no sense. so I imagine that you’d be willing to pay more taxes to pay for free criminal defense attorneys for everyone? right? ---
**Author:** ![Apocalypso](https://avatars.discourse-cdn.com/v4/letter/a/f19dbf/32.png) [@Apocalypso](https://boards.straightdope.com/u/Apocalypso)\ **Post date:** [October 11, 2009, 1:21pm UTC](https://boards.straightdope.com/t/denied-a-public-defender-is-that-legal/513268/18 "2009-10-11T13:21:55Z")
What state is this? I got a DUI in PA, and when I went to court they gave me information that included the number for a public defender. I believe they asked me how much I made but I don’t remember having to provide tax forms, pay stubs, or any other proof of income. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [October 11, 2009, 1:27pm UTC](https://boards.straightdope.com/t/denied-a-public-defender-is-that-legal/513268/19 "2009-10-11T13:27:06Z")
In some jurisdictions (such as Alaska), if the defendant is found guilty, he is charged for the public defender. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [October 11, 2009, 1:30pm UTC](https://boards.straightdope.com/t/denied-a-public-defender-is-that-legal/513268/20 "2009-10-11T13:30:12Z")
> [@t-bonham@scc.net](#): > > 1. Was he actually driving while drunk? > > Then jail is where he belongs, and I see no reason to be spending our tax money paying for a lawyer to help him avoid the consequences of his actions. Isn’t that what a trial is for? On what basis are you going to withold public representation before a trial? And even the guilty deserve representation, to ensure they are not punished beyond the extent of the crimes they actually committed. [Next page](https://boards.straightdope.com/t/denied-a-public-defender-is-that-legal/513268.md?page=2)