Saturday, January 5, 2008

Vindicating the Right to an Attorney in Minnesota DUI Arrests

This past week the Minnesota Court of Appeals addressed the issue of vindicating the right to an attorney for people arrested under the suspicion of driving under the influence in two separate unpublished opinions; A06-1805 State of Minnesota vs. Christopher Charles Tupper and A07-316 State of Minnesota vs. Robert William Stevens.

The Tupper Case

In Tupper, the police arrested the Defendant on suspicion of driving while impaired (DWI) and administered a preliminary breath test that showed his alcohol concentration to be .145. The officer transported Tupper to a police station, where he read the implied-consent advisory to Tupper. At 2:45 a.m., before asking Tupper to submit to chemical testing, the officer gave Tupper a telephone and telephone books to assist him in contacting an attorney. During the next 30 minutes, Tupper made several unsuccessful attempts to contact and consult with an attorney. At 3:16 a.m., the officer told Tupper that he could make no more calls and that he would need to decide whether he would submit to chemical testing without the advice of counsel.
Unsure of how to proceed and confused about the effect that the decision would have on his commercial driver’s license, Tupper asked for “another 15 minutes to try to contact another lawyer out of the phone book.” (This is important because as we will see in the other case not continuing to attempt to reach an attorney, could mean that you no longer need one and could vindicate your right) The officer denied the request. Tupper then refused the test and was subsequently charged with third-degree refusal to submit to chemical testing.

The Court opined that the Minnesota Constitution guarantees an accused driver the right to a reasonable opportunity to get legal advice before deciding whether to submit to chemical testing. This limited right to counsel will be considered vindicated if “the person is provided with a telephone prior to testing and given a reasonable time to contact and talk with counsel.” But “if counsel cannot be contacted within a reasonable time, the person may be required to make a decision regarding testing in the absence of counsel.” What period of time is reasonable depends on the totality of the circumstances and whether the driver made “a good-faith and sincere effort to reach an attorney.” Other issued to be addressed include the time of day and the length of the detention, to determine whether the amount of time afforded was reasonable.

In this case the Defendant made his telephone calls between 2:45 a.m. and 3:16 a.m. Because of the difficulty in reaching an attorney in the early-morning hours, the Court stated that the defendant should have been allowed more time than if he had been arrested during daytime hours. Additionally, the only rationale articulated by the officer for ending Tupper’s attempts to contact an attorney at 3:16 a.m. was a 30-minute limit imposed by Minneapolis Police Department policy, which applies regardless of the time of day that a driver is attempting to contact an attorney. This court found the Minneapolis PD time limitation improper and ruled that the Defendant's right to counsel was not vindicated and reversed the District Court.

The Stevens Case

In Stevens, a Rochester police officer stopped the Defendant after observing him make a wide turn and change lanes without signaling. The defendant was subsequently arrested for driving while impaired (DWI). At approximately 3:00 a.m., the officer began processing appellant for the arrest. At 3:07 a.m., the officer read appellant the Minnesota Implied Consent Advisory statement. At approximately 3:33 a.m., appellant took an Intoxilyzer test. The test recorded appellant’s alcohol concentration at .13.

This case differs from the previous one in a couple of respects; first the Defendant, after trying to contact an attorney eventually gave up and consented to the test, second he requested to speak to his father and was not allowed, third the police was very involved in advising the Defendant. Specifically, the police officer opined:

  • Refusal is a crime, so the attorneys aren’t going to tell you to not take the test—you understand?
  • If you don’t test that is a crime . . . so I find it hard to believe that any attorney in that book is going to tell you not to test, and lastly
  • There’s not going to be hardly any attorney out there that is going to tell you not to take the test.

Defendant argued that his right to counsel was not vindicated because the officer's comments discouraged him from calling an attorney. However, the Court said that his right was vindicated, and while "an attorney, not a police officer, is the appropriate source of legal advice” the record showed that Defendant twice called his attorney of choice, and he had ample opportunity to call others. The officer need only facilitate the right to counsel, not ensure that defendant receives the best counsel. The officer did so when she gave the defendant the phone and phonebook and allowed him to make calls.

With regard to the call to his father that was denied by the police, the Court stated that there is a limited right for a defendant to contact his parents for the purpose of obtaining the name of an attorney. But in this case the Defendant never stated that he wanted to call his dad so that he could get the name of an attorney, therefore the conviction was affirmed.

Morals of the cases.

As it can be seen in the first case the conviction was thrown out because the Court found the rule of 30 minutes to be arbitrary considering the time of night and the fact that the defendant requested more time. Yet, in the second case the Court ruled that 26 minutes were enough to vindicate the right to an attorney because the Defendant did not ask to for more time and consented to the test, nor did he tell the police that he needed to call his parents to get the name of their (an) attorney. Lastly, it's easy being a lawyer, just ask the police. They will advise you strait to a conviction.

Friday, January 4, 2008


Thank you for taking time to visit my blog. I wanted to use this opportunity to inform you that my move at my new location is now complete. I am now located at 423 Third Avenue SE, Rochester, Minnesota. Feel free to browse the website for more information and details. I look forward to your comments and questions.