The Minnesota DWI Case of the Week is Johnson v. Commissioner of Public Safety (Decided March 7, 2016, Minnesota Court of Appeals, Unpublished) which stands for the proposition that an attorney does not "aid and abet" in the crime of refusal-to-submit-to-alcohol-testing if he merely explains the consequences of refusing to take a test.
In Johnson, the Petitioner was arrested for a DWI and was taken to the Hennepin County Jail. The Petitioner was read the Minnesota Implied Consent Advisory and was informed of her right to counsel prior to testing. The Petitioner exercised her right to counsel and subsequently submitted to a Data Master breath test with a final reported value of .18.
The Petitioner challenged the revocation of her license arguing (among other things) that her pre-test right to counsel was not vindicated because the aiding-and-abetting statute prevents an attorney from advising a driver of all the testing consequences.
[It should be noted that an individual who is arrested for a first-time DWI and who tests at .16 or more, would be better off refusing to submit to testing rather than taking the test. Why? Because: (1) a first-time refuser can get a limited license after 15 days; (2) if the charge is reduced to a 4th Degree misdemeanor DWI, his license will be fully reinstated in 30 days; (3) even if the refuser pleads guilty to the crime refusal, his license will be fully reinstated in 90 days; and (4) no "whiskey plates" are issued.
On the other hand, a first-time DWI offender who tests .16 or more will: (1) lose their license for a year with no limited license available; (2) all of their registered vehicles will be required to have "whiskey plates"; (3) if the charge is reduced to a misdemeanor DWI, the license revocation remains one year.]
In Johnson, the Petitioner claimed that she did not receive meaningful attorney consultation because the aiding-and-abetting statute prevented the attorney from advising her that if may be in her best interests to refuse a test because test refusal is a crime.
The District Court sustained the revocation and on appeal, the Minnesota Court of Appeals affirmed, noting that the aiding-and-abetting statute states:
"Every person who commits or attempt to commit, conspires to commit, or aids or abets in the commission of any act declared in this chapter to be an offense, whether individually or in connection with one or more other persons or as principal, agent, or accessory, is guilty of that offense, and every person who falsely, fraudulently, forcibly, or willfully induces, causes, coerces, requires, permits, or directs another to violate any provision of this chapter is likewise guilty of that offense."
The Court of Appeals then held, "But an attorney does not induce, cause, coerce, require, permit, or direct a driver to violate a DWI law by informing the driver of the consequences of test refusal. The supreme court has recognized that the 'choice to submit or refuse to take a test may be a difficult one'. (citation omitted). And a driver makes that choice after consulting with an attorney who 'functions as an objective advisor who could explain alternative choices'. (citation omitted). Thus, providing information, including information on test refusal, is not the equivalent of aiding and abetting a driver in violating the the DWI law. The district court did not err in concluding Johnson's pre-test right to counsel was vindicated."
Moral Of The Story: If You Get Arrested For A DWI, Call A DWI Lawyer Before You Take The Test To Help Decide What To Do!!!!