Monday, January 22, 2018

Minneapolis DWI Attorney F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is Wenzel v. Commissioner of Public Safety (Decided January 22, 2018, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the police cannot terminate an individual's pre-test right to counsel without obtaining an unambiguous waiver of that right.

In Wenzel, the Petitioner was arrested for a DWI and, when asked if he wished to speak to an attorney, the Petitioner said yes.  Wenzel then made two calls, leaving a message during one and speaking with his wife during the second. After speaking with his wife, Wenzel did not make or request to make any additional calls. Six minutes later, at 1:54 a.m., the arresting officer asked Wenzel if he would consent to a breath test, and Wenzel refused.

The Petitioner's license was subsequently revoked for refusal to submit to testing and Mr. Wenzel filed a challenge to the revocation in district court, arguing that his right to counsel had been violated.  The District Court sustained the revocation but on appeal, the Minnesota Court of Appeals reversed the District Court noting:

"Under the right-to-counsel clause in article I, section 6 of the Minnesota Constitution, an individual has the right, upon request, to a reasonable opportunity to obtain legal advice before deciding whether to submit to chemical testing." Friedman v. Comm 'r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991). The right to counsel is considered vindicated if a person is given a reasonable time to contact and talk with counsel. Id. at 835. "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." Id. (quotation omitted). "The right to counsel is limited in DWI cases to ensure that consultation does not unreasonably delay the administration of the test.
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"In this case, the district court found that Wenzel "declined to attempt to contact another [attorney]" and "had no intention of contacting any other attorney." But these findings of fact lack evidentiary support, and we therefore are left with a firm and definite conviction that the findings are clearly erroneous. Officer Walters testified that he could not recall if Wenzel "made any statements that stated I'm done talking with an attorney." And Wenzel did not testify at the implied-consent hearing. The record reflects that, before asking Wenzel if he would submit to a breath test, Officer Walters did not ask Wenzel if he was done trying to contact an attorney, and Wenzel made no affirmative action, such as a nod or statement, to indicate he was done trying to contact an attorney. And the record contains no evidence that, during the six minutes of attorney-consultation time, Wenzel employed delaying tactics or had decided to stop trying to contact an attorney."
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"Based on the facts in this case, we conclude that the state did not vindicate Wenzel's limited right to consult with an attorney. We therefore reverse the district court's order sustaining the revocation of Wenzel's driving privileges."

Moral Of The Story: If you have been arrested for a DWI, always, always, always exercise your pre-test right to counsel.  It may turn out to be the best phone call you ever made!

If you or a loved one have been arrested for a Minnesota DWI, or are facing a DWI forfeiture of your motor vehicle, feel free to contact Minneapolis DWI Attorney, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.







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